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The Netherlands: The Hague Court examines copyright and streaming

Clients are struggling to ban infringing goods from the internet, we experience difficulties making payments because our bank is under a Distributed Denial of Service attack and we frequently receive phishing mails and spam. Despite this, Pirate Bay and illegal streaming can be tempting (even to IP professionals).

The Hague Court in the Netherlands recently (January 24 2018), in the case of the Football Association Premier League against Ecatel (C/09/485400 / HA ZA 15-367) forced an internet provider to improve its control over our digital activities.

The services of internet provider, Ecatel, are used in the illegal streaming of Premier League matches. This, and the fact that the visual reports are made available via streams without permission from Premier League, is not in dispute.

Ecatel however, put forward a defence. Firstly, it stated that football matches are not to be considered copyright-protected work. This was rejected by The Hague Court. In order to make a visual report, it is necessary to make creative choices including the placement of cameras, what will be visualized and when to zoom in or to move along with a camera. In addition, the live commentary, national anthems or other tunes and logos displayed on screen need to be taken into account.

Ecatel argued that it cannot be held liable for the streaming. The Hague Court also rejected this, since according to the court, Ecatel should be regarded as an intermediary as mentioned in Article 26 of the Dutch Copyright Act.

Ecatel furthermore asserted that ordering it to act in case of illegal streaming would be disproportional, undermining the freedom of entrepreneurship. Again, The Hague Court dismissed this argument. It ruled that Ecatel's effort and costs to execute the order are likely to be rather limited, and the consequence that legal content is also blocked can easily be resolved by an adequate notice to take down policy.

The court decided that freedom of information is also sufficiently taken into account as the requested order would only apply to the duration of the infringing streams.

The fact that users can continue to stream via other servers is no reason for the court to reject the claims either, since the European Court of Justice decided in Telekabel/Wien, March 27 2014, C-314/12 that orders are to be considered effective as long as they prevent unauthorised use of protected work or at least make it more difficult, for instance by making streams slower through the use of fewer servers and by forcing users to restart their streams..

Lastly, the order does not conflict with the principle of subsidiarity. The court does not see that there are other less objectionable possibilities to achieve the goal desired by Premier League.

Ecatel is therefore ordered to discontinue its service – if it is used by third parties to infringe Premier League's copyrights – within 30 minutes of receipt of a report and to stop it for the duration of the match. If it does not do this, there will be a penalty.

Annelies de Bosch Kemper

V.O.Carnegieplein 5, 2517 KJThe HagueThe NetherlandsTel: +31 70 416 67 11Fax: +31 70 416 67

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